FOIA: The fight for information in Italy

27 September 2012 |

by Alessia Cerantola.

When Focus magazine decided to release a special issue on the quality of Italian hospitals, its journalists knew they faced an uphill battle to obtain records on patients’ hospitalization from the Ministry of Health.

Focus journalists drew inspiration from a similar report already published by the Guardian; UK journalists had obtained the same data through a request using their Freedom of Information Act (FOIA). With the assistance of administrative lawyers, Focus’s staff made a request similar to the one their UK colleagues made, in accordance with Italian legislation in 2010. Years and denials later, they finally got possession of the data only through “other means,” namely whistleblowers. The resulting report was finally published this summer.

“If we had to sue the minister, the guarantor, the administrative court and then the EU, it’d have taken years, and the lawyers and bureaucracy costs would have amounted to nearly 10,000 euro. Nobody wants to spend this money for old data,” said Amelia Beltramini, news editor of Focus.

“Our case demonstrated that even if you submit a regular request, all that (public servants) do is forward the request to other offices, keep procrastinating or deny the existence of the data itself.”

Sometimes it is a matter of persistence. In the case of Bloomberg News, it took two years to get access to the documents and municipal filings concerning a settlement between the city of Cassino and JP Morgan. Bloomberg made its first request directly to Cassino’s administration in February 2010. After several denials, it went on to the regional ombudsman first and then all the way up to the administrative court. Bloomberg was able to publish the resulting article in April 2012.

“Our Cassino ruling showed what can be achieved using existing laws”, said Bloomberg reporter Elisa Martinuzzi. “We were originally told the documents were private because of a confidentiality clause in the contracts, but we didn’t desist. The lack of transparency should be an opportunity for journalists.”

Personal and Concrete Interests

Despite existing Italian laws (241/90, 150/2009 and 196/2003) that govern access to public information, and new bills aiming to speed up the process, the interpretation of the rules by officials typically remains conservative. Also, providing this information to the public is not considered a public priority.

“These laws are intended for an individual who is pursuing his or her own interests with the administrations, not as a right to know about the entire community,” said lawyer Raffaele Fiengo.

Unless a person has a legal “personal and concrete interest” to get the information, obtaining it might became a crusade for unharmed citizens and for journalists. On the other hand, the lack of awareness of what can be asked for and which administrations are obliged to release makes people give up and not stand up to demand their rights.

Lagging Behind

Now, the decade-long period of inaptitude to disclose information and the over-protected secrecy of public powers have placed Italy far behind global standards in regard to freedom to access information and transparency.

“The country is one of the worst when it comes to access to information, at the bottom in the EU region if not in the rest of the world,” said Helen Darbishire, executive director at Access Info Europe, a human rights organisation that promotes and protects access to information rights.

“The legal framework in Italy is very weak and the legislation is not comprehensive. What is more, it is not clear who makes the decision [to release data]; [public attorneys] want to know who you are. In many other countries, they have a legal obligation to give you the data.”

The Global Integrity ratings on transparency released in 2010 gave Italy’s public administration earned 67 out of 100 points, surprising many of the lawyers and journalists who regularly deal with this matter.

“GI’s assessment, drawn on paper and through interviews, is overly optimistic in the view of many of the media professionals and lawyers working on the ground,” says “Diritto di Sapere” (DDS) (“Right to Know”), a team of journalists and experts which aims to promote access to information for all citizens.

Testing the System

In order to provide detailed insights on the situation, DDS is about to start a project with the help of a cross-section of 40 to 60 volunteers from media people to civil society members who will send 300 to 350 requests for information to public offices and agencies and monitor the feedback. The group will be trained by experts and assisted by lawyers to fill out the requests in different kinds of public interest fields. The results will be recorded and a final report will be made publicly available.

In this climate of change and need for transparency brought by the economic crisis and the previous decades of political and social corruption at every social level, now the wind of justice and transparency seems to be shaking the peninsula.

The commitment of prime minister Mario Monti to implement open government measures has led to new initiatives such as the new online OpenCoesione, a portal focused on financial data regarding EU funded projects in Italy. More than just opening up government data, it is a way to inform people of a specific issue. The site is also good for journalists, as researcher and public servants as David Eaves explains here.

A Need for New Laws

Challenges abound in trying to overcome Italy’s culture of secrecy. A growing number of lawyers, journalists and common citizens have started to group together to lodge demands for more concrete legal changes.

Early in 2012, a movement called Foia.it, which focused on the importance of accessing public administrations acts, started raising its voice with politicians for the enactment of a FOIA in Italy. But this movement’s purpose is also to help the press.

“In the case of journalists, I see that more than the inaptitude to do requests, they are aware that to get certain information and facts in a country where (in journalism) opinions prevail, implies an awful lot of more work to do,” said Andrea Fama, co-funder of Foia.it.

“Restoring the balance between facts and opinions [using FOIAs and public acts] would also mean that a certain kind of journalism would disappear.”

The group made a push at the political level for the enactment of a FOIA in Italy at an event held in Rome on September 19.

Searching for a Model

Discussions are needed regarding which model of FOI would be most suitable for Italy. Many experts refer to countries with the youngest democracy where this freedom is strongly preserved. “Often countries have the aim of sharing information and documents in an open democracy in their constitution such as in Sweden or Norway. The Freedom of Information Act describes the rules of the game of how to do it”, said Brigitte Alfter, editor at Wobbing, a project with the purpose of promoting the freedom of information acts as a journalistic tool.

While the need for a strong rule written down is the starting point, she said, “it is very much up to the citizens and journalists in each country to act. Finally, EU journalists have to remember that if it is necessary, the national legislation on access to document can also be brought to the European Court of Human Rights in Strasbourg.”